Attached files
file | filename |
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8-K - FORM 8-K - International Coal Group, Inc. | c65177e8vk.htm |
EX-4.6 - EX-4.6 - International Coal Group, Inc. | c65177exv4w6.htm |
EX-3.1 - EX-3.1 - International Coal Group, Inc. | c65177exv3w1.htm |
EX-3.2 - EX-3.2 - International Coal Group, Inc. | c65177exv3w2.htm |
Exhibit 4.3
THIRD SUPPLEMENTAL INDENTURE (this Third Supplemental Indenture), dated as of June 15,
2011, among International Coal Group, Inc., a Delaware corporation (the Company), the Guarantors
(as defined in the Indenture referred to herein) and The Bank of New York Mellon Trust Company,
N.A., as trustee under the Indenture referred to below (the Trustee).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated
as of March 16, 2010 (the Original Indenture), as amended and supplemented by the First
Supplemental Indenture, dated as of March 16, 2010 (the First Supplemental Indenture and,
together with the Original Indenture, the Indenture), providing for the issuance of 4.00%
Convertible Senior Notes due 2017 (the Securities);
WHEREAS, the Company is a party to an Agreement and Plan of Merger, dated as of May 2, 2011
(as amended and supplemented from time to time, the Merger Agreement), by and among Arch Coal,
Inc., a Delaware corporation (Arch), Atlas Acquisition Corp., a Delaware corporation and wholly
owned subsidiary of Arch (the Purchaser), and the Company, pursuant to which the Purchaser merged
with and into the Company (the Merger), with the Company surviving the Merger and becoming a
direct wholly owned subsidiary of Arch;
WHEREAS, the Merger became effective at 12:01 a.m., Eastern time, on June 15, 2011 (the
Effective Time) and, from and after the Effective Time, each share of Common Stock issued and
outstanding immediately prior to the Effective Time (other than Common Stock owned by the Company,
Arch, the Purchaser (prior to the Merger) or any of their respective subsidiaries and Common Stock
held by dissenting holders of Common Stock who properly exercise appraisal rights under Delaware
law), by virtue of the Merger and without any action on the part of the holders of the Common
Stock, was cancelled in exchange for the right to receive $14.60 per share, net to the seller in
cash, without interest and subject to any withholding taxes (the Merger Consideration);
WHEREAS, Section 9.12 of the First Supplemental Indenture provides that in connection with the
Merger the Company shall execute with the Trustee a supplemental indenture providing that, at and
after the effective time of the Merger, any shares of Common Stock that the Company would have been
required to deliver upon conversion of the Securities in accordance with Section 9.02 of the First
Supplemental Indenture shall instead be deliverable in the amount and type of consideration that a
holder of that number of shares of Common Stock would have received in the Merger;
WHEREAS, Section 8.01(ii) of the First Supplemental Indenture provides that the Company may
amend or supplement the Indenture without notice to or the consent of any Securityholder to make
provisions with respect to adjustments to the Conversion Rate in accordance with the First
Supplemental Indenture;
WHEREAS, the Company has heretofore delivered or is delivering contemporaneously herewith to
the Trustee (i) copies of resolutions of the Board of Directors of the Company
authorizing the execution of this Third Supplemental Indenture and (ii) the Officers
Certificate and the Opinion of Counsel described in Section 9.06 of the Original Indenture; and
WHEREAS, all other acts and proceedings required by law and the Indenture necessary to
authorize the execution and delivery of this Third Supplemental Indenture and to make this Third
Supplemental Indenture a valid and binding agreement for the purposes expressed herein, in
accordance with its terms, have been complied with or have been duly done or performed.
NOW, THEREFORE, in consideration of the foregoing and notwithstanding any provision of the
Indenture which, absent this Third Supplemental Indenture, might operate to limit such action, the
parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE I
AMENDMENTS
1. Settlement Upon Conversion. Subject to and upon compliance with all the provisions of the
Indenture, upon conversion by a Holder of each Security then outstanding, the Holder shall have the
right to receive the Merger Consideration for each share of Common Stock into which the Holder is
entitled to convert such Security (after giving effect, if applicable, to any additional shares of
Common Stock that such Holder would have been entitled to receive if it converts its Securities
during a Make-Whole Conversion Period), and upon conversion of the Security by a Holder, the
Company shall pay to such Holder cash in an amount equal to the amount such Holder would have
received as Merger Consideration had such Holder converted its Securities at the Conversion Rate in
effect immediately prior to the Merger (after giving effect, if applicable, to any additional
shares of Common Stock that such Holder would have been entitled to receive if it converts its
Securities during a Make-Whole Conversion Period).
2. Effectiveness. This Third Supplemental Indenture will become effective and operative and
binding upon each of the Company, the Trustee and the holders of the Securities as of the Effective
Time.
ARTICLE II
MISCELLANEOUS
1. Capitalized Terms. Capitalized terms used herein without definition shall have the meanings
assigned to them in the Indenture.
2. New York Law to Govern. The internal law of the State of New York shall govern and be used
to construe this Third Supplemental Indenture without giving effect to applicable principles of
conflicts of law to the extent that the application of the laws of another jurisdiction would be
required thereby.
3. Counterparts. The parties may sign any number of copies of this Third Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.
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4. Separability. In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby and a Holder shall have no claim
therefor against any party hereto.
5. Effect of Headings. The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
6. Trustees Acceptance. The Trustee accepts the modifications of the Indenture effected by
this Third Supplemental Indenture, but only upon the terms and conditions set forth in the
Indenture. Without limiting the generality of the foregoing, the Trustee does not assume any
responsibility for the correctness of the recitals herein contained, which shall be taken as the
statements of the Company and the Guarantors. The Trustee makes no representation or warranty and
shall not have any responsibility as to the validity or sufficiency of this Third Supplemental
Indenture or the proper authorization or the due execution hereof by the Company or the Guarantors.
[Signature Pages Follow]
3
IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to
be duly executed and attested, all as of the date first above written.
INTERNATIONAL COAL GROUP, INC. |
||||
By: | /s/ Bradley W. Harris | |||
Name: | Bradley W. Harris | |||
Title: | Senior Vice President, Chief Financial Officer and Treasurer of the Company |
|||
BRONCO MINING COMPANY, INC. |
||||
By: | /s/ Roger L. Nicholson | |||
Name: | Roger L. Nicholson | |||
Title: | Secretary | |||
COALQUEST DEVELOPMENT LLC |
||||
By: | /s/ Roger L. Nicholson | |||
Name: | Roger L. Nicholson | |||
Title: | Vice President and Secretary | |||
HAWTHORNE COAL COMPANY, INC. |
||||
By: | /s/ Roger L. Nicholson | |||
Name: | Roger L. Nicholson | |||
Title: | Vice President and Secretary | |||
HUNTER RIDGE COAL COMPANY |
||||
By: | /s/ Roger L. Nicholson | |||
Name: | Roger L. Nicholson | |||
Title: | Secretary | |||
[Signature Page to Third Supplemental Indenture]
HUNTER RIDGE HOLDINGS, INC. |
||||
By: | /s/ Roger L. Nicholson | |||
Name: | Roger L. Nicholson | |||
Title: | Secretary | |||
HUNTER RIDGE, INC. |
||||
By: | /s/ Roger L. Nicholson | |||
Name: | Roger L. Nicholson | |||
Title: | Secretary | |||
ICG ADDCAR SYSTEMS, LLC |
||||
By: | /s/ Christina T. Brumley | |||
Name: | Christina T. Brumley | |||
Title: | Assistant Secretary | |||
ICG BECKLEY, LLC |
||||
By: | /s/ Christina T. Brumley | |||
Name: | Christina T. Brumley | |||
Title: | Assistant Secretary | |||
ICG EAST KENTUCKY, LLC |
||||
By: | /s/ Christina T. Brumley | |||
Name: | Christina T. Brumley | |||
Title: | Secretary | |||
ICG EASTERN LAND, LLC |
||||
By: | /s/ Christina T. Brumley | |||
Name: | Christina T. Brumley | |||
Title: | Assistant Secretary | |||
[Signature Page to Third Supplemental Indenture]
ICG EASTERN, LLC |
||||
By: | /s/ Christina T. Brumley | |||
Name: | Christina T. Brumley | |||
Title: | Secretary | |||
ICG HAZARD LAND, LLC |
||||
By: | /s/ Christina T. Brumley | |||
Name: | Christina T. Brumley | |||
Title: | Assistant Secretary | |||
ICG HAZARD, LLC |
||||
By: | /s/ Christina T. Brumley | |||
Name: | Christina T. Brumley | |||
Title: | Secretary | |||
ICG ILLINOIS, LLC |
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By: | /s/ Christina T. Brumley | |||
Name: | Christina T. Brumley | |||
Title: | Secretary | |||
ICG KNOTT COUNTY, LLC |
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By: | /s/ Christina T. Brumley | |||
Name: | Christina T. Brumley | |||
Title: | Secretary | |||
ICG NATURAL RESOURCES, LLC |
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By: | /s/ Christina T. Brumley | |||
Name: | Christina T. Brumley | |||
Title: | Assistant Secretary | |||
[Signature Page to Third Supplemental Indenture]
ICG TYGART VALLEY, LLC |
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By: | /s/ Christina T. Brumley | |||
Name: | Christina T. Brumley | |||
Title: | Assistant Secretary | |||
ICG, INC. |
||||
By: | /s/ Roger L. Nicholson | |||
Name: | Roger L. Nicholson | |||
Title: | Senior Vice President, Secretary and General Counsel |
|||
ICG, LLC |
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By: | /s/ Roger L. Nicholson | |||
Name: | Roger L. Nicholson | |||
Title: | Senior Vice President, Secretary and General Counsel |
|||
JULIANA MINING COMPANY, INC. |
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By: | /s/ Christina T. Brumley | |||
Name: | Christina T. Brumley | |||
Title: | Secretary | |||
KING KNOB COAL CO., INC. |
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By: | /s/ Christina T. Brumley | |||
Name: | Christina T. Brumley | |||
Title: | Secretary | |||
[Signature Page to Third Supplemental Indenture]
MARINE COAL SALES COMPANY |
||||
By: | /s/ Christina T. Brumley | |||
Name: | Christina T. Brumley | |||
Title: | Assistant Secretary | |||
MELROSE COAL COMPANY, INC. |
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By: | /s/ Christina T. Brumley | |||
Name: | Christina T. Brumley | |||
Title: | Secretary | |||
PATRIOT MINING COMPANY, INC. |
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By: | /s/ Roger L. Nicholson | |||
Name: | Roger L. Nicholson | |||
Title: | Secretary | |||
POWELL MOUNTAIN ENERGY, LLC |
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By: | /s/ Roger L. Nicholson | |||
Name: | Roger L. Nicholson | |||
Title: | Vice President and Secretary | |||
SIMBA GROUP, INC. |
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By: | /s/ Roger L. Nicholson | |||
Name: | Roger L. Nicholson | |||
Title: | Secretary | |||
UPSHUR PROPERTY, INC. |
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By: | /s/ Christina T. Brumley | |||
Name: | Christina T. Brumley | |||
Title: | Secretary | |||
[Signature Page to Third Supplemental Indenture]
VINDEX ENERGY CORPORATION |
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By: | /s/ Roger L. Nicholson | |||
Name: | Roger L. Nicholson | |||
Title: | Secretary | |||
WHITE WOLF ENERGY, INC. |
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By: | /s/ Roger L. Nicholson | |||
Name: | Roger L. Nicholson | |||
Title: | Vice President and Secretary | |||
WOLF RUN MINING COMPANY |
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By: | /s/ Roger L. Nicholson | |||
Name: | Roger L. Nicholson | |||
Title: | Secretary | |||
[Signature Page to Third Supplemental Indenture]
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee |
||||
By: | /s/ Linda E. Garcia | |||
Name: | Linda E. Garcia | |||
Title: | Vice President | |||
[Signature Page to Third Supplemental Indenture]